END USER LICENSE AGREEMENT
1.1 Performance. Subject to the terms and conditions of this End User License Agreement (the “Agreement”) and payment in full of applicable fees to Content Enablers, Inc. (the “Company”), Company shall provide, during the Term, Company’s proprietary service (the “Service”) to the customer acknowledging the terms and conditions of this Agreement (the “Customer”) and Customer may access and use the Service solely for the purposes permitted by Company. Additionally, Customer may permit its employees (each, a “User”), up to the number of User licenses purchased by Customer, to access and use the Service solely for the benefit of Customer’s internal business purposes, provided, however, that Customer shall be responsible for ensuring that access to and use of the Service by Users is in accordance with the terms and conditions of this Agreement.
1.2 Security. Customer and Users will comply with all Company rules and regulations and security restrictions in connection with use of the Service. Each User will be assigned a unique User identification name and password for access to and use of the Service (“User ID”). Customer shall be solely responsible for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any User ID and that any transactions under a User ID will be deemed to have been performed by Customer. Customer may not have active Users in excess of the number of User licenses purchased by Customer. Use of any User ID other than as provided in this Agreement shall be considered a breach of this Agreement by Customer.
1.3 Proprietary Rights. Customer acknowledges Company’s proprietary rights in the Service and associated documentation and shall protect the proprietary nature thereof. If Customer suggests any new features, functionality or performance for the Service that Company subsequently incorporates into the Service (or any other software or service), Customer hereby acknowledges that (i) Company shall own, and has all rights to use, such suggestions and the Service (or any other service) incorporating such new features, functionality, or performance shall be the sole and exclusive property of Company; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Company. Customer shall not disassemble, decompile, reverse engineer, modify, transcribe, store, translate, sell, lease, or otherwise transfer or distribute the Service or its associated documentation, in whole or in part, without prior authorization in writing from Company. In the event of any breach of this Section 1.3, Customer agrees that Company will suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against Customer.
2. COMPANY OBLIGATIONS
2.2 Data Retention. Customer agrees that Company’s obligation to keep or maintain any Customer Information obtained in the course of performance of the Service shall not extend beyond the expiration of thirty (30) days following the termination of this Agreement. Company will provide a copy of Customer Information in the hosted format upon termination or expiration of the Agreement (at Customer’s expense), provided that Customer requests such copy, in writing, within ten (10) days following the termination of this Agreement.
2.3 Data Collection. Company shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information (including, without limitation, Customer Information) resulting from Customer’s and User’s access and use of the Service (“Blind Data”). To the extent that any Blind Data is collected by Company, such Blind Data shall be solely owned by Company and may be used by Company for any lawful business purpose without a duty of accounting to Customer, including, without limitation, providing Customer with the opportunity for Customer to benchmark itself against its peers, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of Customer, Company agrees use commercially reasonable efforts to comply with the applicable U.S. laws and regulations respecting the dissemination and use such Blind Data.
2.4 Third-Party Software; Subcontracting. To the extent that the Service incorporates any third-party software licensed by Company, then, in addition to the terms set forth herein, Customer must comply with any additional terms, restrictions, or limitations applicable to such third-party software. Additionally, Customer acknowledges that Company shall have the right to subcontract performance of the hosting of the Service, in which event the service terms provided by any third-party hosting provider will be incorporated herein by reference.
3. CUSTOMER OBLIGATIONS
3.1 Assistance. Customer shall provide all reasonable assistance and cooperation requested by Company.
3.2 Hardware. Customer shall procure, install and maintain all equipment, Internet connections and other hardware (other than the hardware constituting the support center maintained at Company’s facilities) necessary for Customer and Users to connect to and access the Service.
3.3 Conduct. Customer agrees not to: (i) copy, decompile, reverse engineer, disassemble, attempt to derive the source code, modify or create derivative works of the Service or any Service related documentation; (ii) upload or distribute in any way files that contain viruses, trojans, worms, time bombs, logic bombs, corrupted files, or any other similar software or programs that may damage the operation of the Service or another's computer; (iii) use the Service for illegal purposes; (iv) interfere or disrupt networks connected to the Service; (v) upload, post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (vi) upload amounts of data and/or materials in excess of any limits specified by Company from time to time and not to create large numbers of accounts or otherwise transmit large amounts of data so as to clog the Service or comprise a denial of service attack or otherwise so as to have a detrimental effect on the Services; or (vii) upload, promote, transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability. Company may take whatever remedial action it determines in its sole discretion is appropriate if Customer violates these restrictions, including, but not limited to, immediate suspension or cancellation of the Service.
4. FEES AND PAYMENTS
4.1 Payments. All payments due to Company hereunder shall be made in United States Dollars. All payments not made when due shall be subject to late charges of the lesser of: (i) one and one-half percent (1.5%) per month of the overdue amount; or (ii) the maximum amount permitted under applicable law. Customer shall reimburse Company for all fees and expenses, including reasonable attorneys’ fees, Company incurs to collect, or attempt to collect, amounts owed by Customer to Company.
4.2 Taxes. Customer shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by Company’s net income, unless Customer is exempt from the payment of such taxes and timely provides Company with evidence of such exemption.
5. WARRANTIES; DISCLAIMER
5.1 Limited Platform Warranty. For a period of thirty (30) days following Customer’s receipt of the Service (the “Warranty Period”), Company shall correct or replace any component of the Service that causes a reproducible error that results in (i) a total loss of functionality of the Service (i.e., “crashing”) or (ii) the generation of error messages. Customer’s exclusive remedy with respect to any material nonconformity or defect in the Service discovered during the Warranty Period will be limited to, at Company’s option, (a) the repair or correction of any defective or nonconforming component of the Service; or (b) the replacement of any defective or nonconforming component of the Service. Company shall have no obligation to provide corrections or replacements in the event (x) Customer modifies the Service (or any component thereof) without Company’s prior written consent; (y) the error is caused in whole or in part by persons other than Company, including without limitation, Customer’s failure to properly enter data; or (z) the error is caused in whole or in part by Customer’s use of the Service in association with operating environments and platforms other than those specified by Company. In the event that Company determines that Customer’s report of an error is incorrect, Company may charge Customer for Company’s time at Company’s published rates then in effect.
5.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5.1 ABOVE, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. COMPANY MAKES NO REPRESENTATION OR WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY MERCHANTABILITY, OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
5.3 Legal Disclaimer. Customer is responsible for ensuring compliance with all laws and regulations applicable to it. Company does not provide legal advice or represent or warrant that its Service will ensure that Customer is in compliance with any law or regulation. Customer’s reliance on the Service and all Service output is at Customer’s sole risk.
6. INFRINGEMENT AND INDEMNIFICATION
6.1 Infringement Indemnity. Company will defend and indemnify Customer against third-party claims that the Service used by Customer in accordance with this Agreement infringes or misappropriates the third-party’s intellectual property rights in the United States, provided that: (a) Customer agrees to notify Company promptly in writing of Customer’s knowledge of a claim; (b) Company has sole control of the defense and all related settlement negotiations; and (c) Customer shall provide Company with the assistance, information, and authority reasonably necessary to perform such defense. Company shall have no liability for any claim of infringement resulting from: (i) Customer’s alteration or modifications of the Service without Company’s prior written approval (ii) Customer Information; or (iii) the combination or use of the Service with software, data, or material not furnished by Company.
6.2 Mitigation/Termination. In the event that some or all of the Service is held or is reasonably believed by Company to infringe the rights of a third party, Company shall have the option to: (i) modify the Service to make it non-infringing; or (ii) obtain a license that permits Customer to continue using the Service. If neither of such options can be exercised by Company on a commercially reasonable basis and the infringing materials materially affect the Service or the ability of Company to meet its obligations under this Agreement, then Company may terminate this Agreement and Customer shall be entitled to recover from Company a portion of the Service fee paid to Company prorated over the remainder of the Term.
6.3 Exclusive Remedy. This Section 6 states Company’s entire liability and exclusive remedy for infringement of third-party intellectual property rights.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE RETURN OF AMOUNTS PAID IN ADVANCE BY CUSTOMER FOR THE SERVICE TERM NOT YET PERFORMED AS OF THE DATE A CLAIM ARISES HEREUNDER.
8. FREE TRIALS; TERMINATION
8.1 Term. This Agreement shall continue, initially, for a period of twelve (12) months, unless terminated earlier as set forth herein (the “Initial Term”). Following the expiration of the Initial Term, this Agreement will renew for successive periods of twelve (12) months each (each a “Renewal Term”), unless Customer provides written notice of its decision to not renew the Term at least ninety (90) days prior to the end of the Initial Term or any subsequent renewal term.
8.2 Termination by Company for Material Breach. Either party may terminate this Agreement if the other party is in material breach hereunder and has not cured the breach within thirty (30) days after written notice specifying the breach. Notwithstanding the foregoing, this Agreement, and all rights and obligations hereunder, shall automatically terminate in the event that Customer breaches any of its obligations under Sections 1.3 or 3.3.
8.3 Termination upon Insolvency. This Agreement may be terminated by a party immediately and without notice in the event the other party: (i) becomes unable to pay its debts generally as they become due, (ii) makes a general assignment for the benefit of creditors, (iii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, (iv) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (v) seeks or consents to reorganization under any bankruptcy act, or (vi) ceases to do business itself or through a successor.
8.4 Effect of Termination. Upon termination of the Agreement for any reason, Customer’s right to use the Service shall immediately cease. Termination of this Agreement shall not relieve either party of any obligation accrued prior to the termination date. Termination shall not effect the obligations under Sections 1.2, 1.3, 2.3, 2.4, 4, 5, 7, 8.4, 9 and 10.
8.5 Free Trials. If Customer has registered on our website for a free trial, Company will make Services available to Customer on a trial basis free of charge until the earlier of (i) the end of the free trial period for which Customer registered to use the applicable Service(s), or (ii) the start date of any purchased Service subscriptions ordered by Customer for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Any data Customer enters into the Services during Customer’s free trial will be permanently lost unless Customer purchases a subscription to the same Services as those covered by the trial, or exports such data, before the end of the trial period. Notwithstanding anything contained herein to the contrary, the Services provided during a trial period are in lieu of any representations, warranties, indemnification rights or any and all liability to Company. Customer’s use of the Services during a trial period is at Customer’s sole risk.
9. CONFIDENTIAL INFORMATION
9.1 Definition. “Confidential Information” means the Service, its associated documentation, Company’s pricing for the Service, and other information disclosed by Company under this Agreement that is designated as confidential or that by its nature would reasonably be expected to be kept confidential.
9.2 Nondisclosure. Customer agrees to hold the Confidential Information in confidence. Customer agrees not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing its obligations or enjoying its rights under this Agreement. Customer agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Customer represents that it has, with each of its employees who may have access to any Confidential Information, an appropriate agreement sufficient to enable it to comply with all of the terms of this Section 9.
9.3 Required Disclosure. Notwithstanding the foregoing, Customer may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that Customer provides to Company prior written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure.
10.1 Relationship Between The Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties; nor will either party hold itself out as an agent, partner, or joint venture party of the other party.
10.2. Compliance With Law. Customer shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.
10.3. Notice. Whenever notice is required to be given under this Agreement, such notice shall be in writing and shall be addressed to the Company at 462 Broadway, Suite 200, Saratoga Springs, NY, 12866, Attention: Bradley J. Kabanuk, President, or to such other address as the Company shall have last furnished in writing to Customer.
10.4. Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective against Company unless in a writing signed by Company.
10.5. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
10.6. Assignment. Customer may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Company. The sale of a controlling interest in Customer through a single transaction or a series of transactions shall be deemed an assignment hereunder for which Company’s consent is required. Company may assign and delegate this Agreement to successors in the event of a merger, acquisition or other change in control. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
10.7. Governing Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of New York without regard to the conflict of law provisions thereof.
10.8. Force Majeure. Company shall not be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar causes beyond Company’s control. Customer acknowledges that the performance of certain of Company’s obligations may require the cooperation of third parties designated by Customer and outside the control of Company. In the event such third parties fail to cooperate with Company in a manner that reasonably permits Company to perform its obligations, such failures shall be consider as causes beyond the control of the Company for the purposes of this Section and shall not be the basis for a determination that Company is in breach of any of its obligations under this Agreement or is otherwise liable. Either party may terminate at its option this Agreement if any such situation continues for thirty (30) days and prevents the continued performance of this Agreement by the other party.